We here at Abnormal Use remain fans of HBO’s “Game of Thrones,” so it was with great interest that we read this morning’s opinion in McCammon v. Home Box Office, Inc. and George R.R. Martin, No. 15-28712 (U.S. District Court for the Western District of South Carolina, April 1, 2016). Martin, as we all know, is the author of the “Song of Fire And Ice” fantasy novels, upon which HBO’s successful television series, “Game of Thrones,” is based. Over the past twenty years, Martin has released five novels in the series, the first in 1996, and the most recent in 2011. At least two more novels in the series are planned. “Game of Thrones,” the television series, debuted on HBO in 2011. Its sixth season is scheduled to premiere later this month, and the television writers have nearly exhausted all of Martin’s published source material. This, of course, means that the television show is now actually ahead of the narrative in the books (which is a curious thing indeed). We here at the blog have a number of opinions on that development, but today, we write about the federal litigation arising from it.
The factual background: Bill McCammon, a librarian and blogger from Greer, South Carolina, sued HBO and Martin in federal court following the finale of the most recent season of “Game of Thrones” in June of 2015. In so doing, he asserted various causes of action against Martin, including a claim for “negligent artistry,” alienation of affection, and a novel use of laches, which is traditionally an affirmative defense asserted by defendants against plaintiffs accused of unreasonable delay. In the complaint, McCammon further complained that he had “suffered a loss of moral superiority, as his status as a reader of the novels provided him with foreknowledge of the events of the HBO series, thereby distinguishing him from mere watchers of popular television.” Martin’s delay, McCammon contended, cost him that “precious” status. McCammon further contended that HBO was vicariously liable for Martin’s torts in light of their artistic relationship. (Before the court’s order, McCammon abandoned an unrelated claim seeking restitution from HBO for both the cancellation of “Deadwood” and the perpetration of “True Blood.”).
For its part, HBO answered the suit and cross-claimed against Martin for contractual and common law indemnity. Martin, on the other hand, failed to answer the complaint, although he did file multiple pro se motions for extensions of time to do so. His final filing on the docket was a motion for leave to exceed page limitations.
In today’s order, the court granted McCammon’s motion for default judgment against Martin but denied his motion for summary judgment against HBO. Adopting McCammon’s laches theory, the Court observed that “art, unlike molasses, must move quickly, and thus, an artist’s unreasonable delay in releasing a promised work must subject that creator to liability.” (citing In Re: Chinese Democracy Litig., 61 F.3d 21 (W.D. Tex. 2007) (mandating that the rock band Guns N’ Roses release its long overdue album “with all deliberate speed”) and Shearer v. Lewis, 572 S.E.2d 492, 652 (Ga. Ct. App. 2009) (finding that it was “well within the Court’s inherent power to order the release of defendant’s unreleased film, The Day The Clown Cried“)). Thus, Martin was liable to McCammon. In its briefing, HBO attempted to counter that line of authority, citing a number of cases holding that “federal courts should refrain from regulating an artist’s output, lest the artist be forced to release too much material.” (citing Adams v. Adams, 867 F.3d 539 (S.D.N.Y 2006) (invoking the “merciful estoppel doctrine” in granting the singer Bryan Adams’ request for an injunction enjoining the singer Ryan Adams from releasing more than three albums per year); In re: Kanye West Litig., 901 F.3d 42 (S.D.N.Y 2015) (self explanatory). However, the Court found that McCammon’s vicarious liability theory against the premium cable network “constituted a mummer’s farce” and, thus, granted HBO’s motion for summary judgment on those claims. Additionally, the Court granted HBO’s motion for default judgment against Martin, noting the author’s failure to answer and, deciding to reach the merits of the dispute, invoking “the common law rule that litigants with multiple middle initials are estopped to deny indemnity claims arising from works of art.” (citing WingNut Films, Ltd. v. The Tolkien Estate, 721 F.2d 551 (9th Cir. 2002)).
In response to the ruling, Martin, through his literary agent, declined to comment, saying he was too busy working on other projects to prepare a response to the ruling.